Early Lessons From New Zealand's 'Three Strikes' Punishments

from the you-call-that-justice? dept

New Zealand has the unhappy distinction of being in the vanguard of using the "three strikes" approach of punishment for people accused of sharing unauthorized copies online. As in France and the UK, this was brought in without any preparatory research to ascertain its effectiveness, and without any real thought about the practical implications. That makes a post by Susan Chalmers on the blog of InternetNZ, a "non-profit open membership organisation dedicated to protecting and promoting the Internet in New Zealand", particularly valuable.

It's full of fascinating details, and is well-worth reading for the insights it gives into the realities of the three-strike approach in New Zealand. Take the following, for example:

Both were caught illegally uploading songs. The specific "wrong" here according to the Copyright Act is that only the copyright owner can "communicate the work to the public". The law appears to presume that when your BitTorrent client allows other P2P users to download from you, then you are communicating that work to the public, even though that “public” could in fact be one person

That might seem a mere technicality, but as Chalmers points out, it isn't:

The written decisions showed that the account holders had a limited understanding of the technology they had been punished for using. Neither account holder seems to have understood that when you download a file, the client will automatically start uploading it to peers who request it. This goes to suggest that the account holders didn't know what their computer was doing was wrong (though they may have understood that downloading was wrong).

Again, this isn't a minor detail, because of perhaps the most problematic aspect of the three-strikes approach:

The law inverts the age-old principle (you know, that one that's essential to due process and a democratic society) that a person is "innocent until proven guilty". In a normal copyright infringement case that occurs in a court of law, the burden is on the copyright owner to prove that the alleged infringer infringed.

Under Skynet, the burden is on the alleged infringer/account holder to prove that they did not infringe. Specifically, they have to contest each of the three infringements listed on the notices.

Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined. With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.

As Chalmers emphasizes:

We have to be immensely careful that in developing novel legal standards and processes to protect copyright owners in the online environment, we do not gloss over the basic safeguards that should be provided to people under a fair legal system.

On the basis of these early cases, and the clear bewilderment and helplessness of those accused, it would seem that this is simply not happening. It will be interesting to read a similar analysis once more people have been processed by the system.

So they managed to catch clueless average joes/janes. Where are the hardcore pirates eh?

I'm eager to see some heavy statistics here. What was the impact in the legal market? Did the sales skyrocket? Is it promoting MORE creations at the local level? How is the usage of other types of file sharing platforms (ie cyberlockers)? How is the usage of VPNs or other methods that can be used to conceal file sharing activities?

I'm fairly sure numbers will be trumpeted as if the system works flawlessly without any regard to proper methodology and evidence... Sadly.

Real Pirates

'With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.'

even in this situation, it is assumed that the accused can afford to hire a lawyer who knows not only the law in general but the laws concerning file sharing in particular

Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined.

You seem to like quoting "guilty until proven innocent" but you seem to overlook "ignorance of the law is no excuse".

Piracy STILL wrong despite corporate abuses!

Yes, that's the amazing (to you pirates) conclusion that I'm forced to by facts and logic applied to those facts. As I've said before, I don't support corporate greed (and would reduce it), BUT "intellectual property" is a valid notion, long recognized (writen into US Constitution despite Mike trying to erase it) in the word itself: "copy + right". No one but the creator has a right to distribute the works, not even when euphemized as "sharing". It derives from the creation, and the law is only recognition of right to keep one's own work, and solely to profit from it.

Anyhoo, been over that ground, yet you pirates still go on making excuses for taking someone else's work, and also giving it away to others, and for Megaupload sleaze-balls getting money for what they didn't create, and so on. You're on the wrong side of the moral question, so can only try petty legalisms.

And here, Mike is down to claiming that ignorance of common knowledge is some excuse. Well, it ain't. If one doesn't know how torrenting works yet still engages in it, then it IS justice to be taught harshly.

Take a loopy tour of Techdirt.com! You always end up at same place!http://techdirt.com/
Where Mike sez: uploader + file host + links site + downloader = perfectly "legal" symbiotic piracy.

Re:

Funny, because that worked for all the DMCAs sent out and all the people wrongly accused of piracy. I'm pretty certain your hero Evan Stone argued "ignorance of the law" - how's that amnesty campaign for him coming along?

Re: Piracy STILL wrong despite corporate abuses!

Re: Piracy STILL wrong despite corporate abuses!

Again with the lying and name calling, unable to understand the simplest concept being discussed - not least the fact that it's possible to criticise the idiotic tactics you obsessively defend, yet also not support or participate in piracy. You erect yet another strawman, tilt at yet another windmill, and act the fool yet again.

Is it your low level of intellect, your unfathomable anti-Mike obsession or a pay packet that's making you so stupid?

"Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of."

It's also asking to prove a negative, which is impossible. If I get falsely accused of piracy, I can say I didn't do it, I can provide details of the thousands of songs I legally own, I can provide my hardware and show that the song isn't on there, and provide forensic data to show that it never was.

However, none of this will provide that I didn't download that song, and it's doubly troublesome if uploading is the accusation (if you have that song but have never used file sharing software to upload it, how do you prove that?). Therein lies the problem. You're not only being forced to defend against an accusation on the presumption of guilt, you're placed into a situation where it's virtually impossible to prove that you didn't do it.

That's why this is so problematic. The evidence is shaky, has been shown to be mistaken, flawed or even falsified before, attacks the owner of an account (who may have no knowledgeable of the uploaded, may have been hacked, etc.). For that to be then used in a situation where a truly innocent party has no chance to defend themselves is unjust to say the least.

I'm curious to know

When does a file of 1 and 0's become a copyrightable file? If, for example, the file is corrupt than surely there can be no claim for infringement? In the same way, if I copy out a book in pencil, then rub it all out and send the blank pages to someone, it can't be claimed that they have a copy of the book.

I only question that because there is an extremely high likelihood with bittorrent that the uploader is only communicating a partial file - either because they haven't finished downloading themselves, there are others seeding, or they decide to switch off their client. In itself, that received part file is useless.

This news isn't particularly earth-shattering. Users made files available for copying by the public, from their own computers. The number of people who may have downloaded copied from them is irrelevant. The fact that they were unaware of their computer's operations is irrelevant. The fact that this may increase the number of torrent leeches and decrease seeders is irrelevant.

I do hope this was only one strike for them. It would be unfair for strikes two and three to rack up in quick succession before the first one was adjudicated.

Re: Piracy STILL wrong despite corporate abuses!

OOTB, get your bloody head out of your arse, you blithering idiot. Again trying to bait Mike into saying things he didn't and again you, you half witted, sorry excuse for a troll, you didn't read the bloody article did you? Mike didn't write the story and you'd know that if you had. Intellectual Property has not been written into the constitution you moron, it didn't come in till 1796 long after the constitution was drafted so why don't you and your maximimalist cronies go jump off a bridge with a sixty pound weight around your necks. You'd be doing the world and this forum a huge favor.

Re:

That's an important point that the article overlooked. Even if the law is terrible in New Zealand, it's still the law and people should at least be responsible enough to be aware that they're breaking it.

Re: Re: Re:

YES, EXACTLY.

It communicates my interest in that creative output.
It publishes one more redundant copy on the distribution network from which I get it.
It lets the artists show me their work.
It raises my awareness of the content, ideas, whatever.
It lets people talented enough to re-use it in their creative endeavors do so.
I give it my attention. There is a limit of about 18 man-hours per day of it that I can spend on enjoying art. There is a limit of about 7 billion times that much attention in the world. So that's an advantage for the creator, in mind-share.
It lets me show it to other people in person.
It lets me show it to other people on the other side of the world, just by sharing the link.

Who are you to prevent humans from telling jokes to one another? What if I hear a great joke and print it on a billboard to make lots of people laugh? What if I compile all the jokes I heard in a file and distribute that? SEEDING DISCOGRAPHIES IS THE SAME THING BUT MORE EFFICIENT.

ALL movies have to make their COST back in EARNINGS in TWO DAYS and EVERY one that got a sequel DID SO. Thus, there is no reason to protect them with copyright.
Music? GO PLAY LIVE, GET PAID. Images? Well, a really nice printout of your digital painting, hand-signed and well-framed, is exactly as valuable as the same image painted on canvas. Thus, it's worth your name value divided by the order or magnitude of the amount of copies you print in that form. Which means, more copies mean more name recognition mean more value to your official, signed works mean MORE MONEY FOR YOU.

Everything that tries to block human communication is a crime against humanity, and counter-productive.

Re: Re: Piracy STILL wrong despite corporate abuses!

Poor OOTB,you sure need attention don't you? What happened to you that you need to troll for attention? Why do post weak arguments are you really anti-privacy as you say are or are you not if you post weak arguments,misinformation to damage the anti-privacy camp from within?

Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?

You go off on the usual tear after "IF". -- IF you're a complete fool then you make up a story that fits your notions. The fact is that's you did there.

NOW, in the GIVEN ACTUAL cases, where those fools admitted to, hmm, neutral term, "torrenting", where that FACT is acknowledged, where do you stand? Wrong or not? -- And since I don't see how you can avoid calling it "wrong" (though I'm pretty sure that you will), then doesn't SOME punishment follow?

(I'm not for harsh corporatized law where fools are dragged in and inquisited, threatened, and unduly punished beyond the actual value of the tunes -- that'd be about three bucks per thousand, maybe -- nonetheless, the principle of WRONG to COPY someone else's work must stand. It's necessary and good.)

Re: Re: Re:

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"So they managed to catch clueless average joes/janes. Where are the hardcore pirates eh?"

Exactly. The average person isn't really the problem but they are the ones they are catching. They built a trap that only the stupid mice get caught it - meanwhile the smart ones are shitting in their cereal.

Re:

Re: Piracy STILL wrong despite corporate abuses!

If the law is just a recognition where does this right come from because it didn't exist before it was codified into law. Show me in nature where a phenomena like paying the individual that came up with an idea takes place. Does every monkey pay the first monkey to smash something with a rock a royalty? Does a mocking bird pay for a public performance license before mimicking the songs of other birds and reptiles? Surely if the law is just a recognition you can point out at least one example of where it happens in nature. That's what natural right means after all.

Re: Re:

No, it's not an important point the article overlooked because it has nothing to do with what's being talked about. Not knowing how bit torrent works is in absolutely no way the same thing as pleading ignorance of the law.

Re:

Actually given todays standard of law and the shear volume it is perfectly understandable if someone doesnt know the law.

Simple math (as i know your a simple soul, and we will use America as the focus point):

50 states with (for the sake of argument) with 50 cities in each, plus the dictates at the federal level. That would equal 2501 seperate legal entities capiable of making a law. Now this doesnt count all the counties, municipalities, towns, bergs, and others but gives us a number to start with. And it doesnt count treaties, other nations (as the interwebs hits them all).

So 2501 lawmaking bodies, if each started with 100 laws (and we know they greatly exceed that by a fair number): you now have 250,100 laws (civil/criminal and the like) if each makes a new law a month (average) that would equal 2501 new laws per month (30,012 per year). in 25 years you would exceed 1 million laws (if the rates stayed the same). America is ~ 200 years old so you could have ~8,000,000 laws

No human on the planet could reasonable expect Judges/Lawyers/Police/Lawmakers to keep track of all of this and its their job. Yet you purupose the average citizen to know it all as well... if you have not found your fault/answer yet, i can not further assist you as your head is planted way to far up someones rectum.

Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?

Typical Trollish behavior, Gee OTTB you're so predictable. You with your strawman when you 're called on it you act like a spoiled child.Gee,You got what you deserve attention becuase your offline life sucks, huh?

Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?

If by 'wrong' you mean morally then no, it's not wrong. This isn't a question of morality and it never was.

If by 'wrong' you mean legally then maybe, it depends on the laws. Judging from the analysis above that's certainly up for debate under New Zealand law. Not to mention the situation isn't one of the law at all, it's a third party system. It's extra-legal. Now there is a word for taking the law into your own hands and that is widely considered wrong.

Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?

Ok now i see, you like the "ends justifies the means" philosphy.. Oh the atrosities that have committed and the souls that rest well thinking this is a valid way to solve their problem, yet not realizing they became worst than what they fought...

Re: Re:

Okay, you get a funny vote for that one.

The idea that a citizen of pretty much any country these days could be knowledgeable of all the laws they might be breaking is completely and utterly insane, given how many laws, both current and old-but-still-on-the-books there are.

As an entertaining example, spot the fake law from the following list:

1. It is illegal to leave baggage unattended.

2. No cows may be driven down the roadway between 10 AM and 7 PM unless there is prior approval from the Commissioner of Police.

3. An ashtray is considered to be a deadly weapon.

4. It is illegal to repaint a house without a painting license and the government’s permission.

5. You may not take a picture of a rabbit from January to April without an official permit.

Re: Re: Re:

Re: Re:

I am sorry, but here, the laws are so voluminous that not even specialists agree on what is over what legally. The legal texts around unions are about 70.000 pages. Good luck reading through all of that... Of course you need to learn about several parts of the law, but nobody understands all laws...

Re: Re: Re: Re:

Re: Re:

But the thing is that: if the law says download is leagal and upload is illegal and you think bittorrent is download only, then your not ignorant of the law. You are ignorrant of bittorent, wich is a defense. But i dont know if downloading is leagal in NZ. (I know it is in some european countries)

Re: Re: Piracy STILL wrong despite corporate abuses!

Again trying to bait Mike into saying things he didn't and again you, you half witted, sorry excuse for a troll, you didn't read the bloody article did you? Mike didn't write the story and you'd know that if you had.

If anyone thought there would be a mass persecution of alleged "infringers", that would be a bit naive. The Malicious Minds behind all this know full well there would be a public backlash, or at the very least this would become an "ISSUE" come election time.

"Rights" holders are very careful that anything "digital" other than cyberattacks (used to ratchet even further) are NEVER discussed in a big publicly televised debate.

Re: Re: Re: I'm curious to know

Re: Re: Re: I'm curious to know

actually, i think this *IS* an interesting question, from both a technical/legal aspect, AND from a practical one...

i *PRESUME* that the one 'gotcha' in this scenario, is the 'illegal intent' angle: it don't matter that someone is totally incapable of killing someone, IF they SAY they are going to kill someone, that is enough for the law...

Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?

"You go off on the usual tear after "IF". -- IF you're a complete fool then you make up a story that fits your notions. The fact is that's you did there."

No, I addressed real risks associated with these attacks. Whether or not they're applicable to this particular case doesn't change the fact that innocent people have been attacked in the past, and this setup is gamed to make it impossible for an innocent to protect themselves. I'm sorry if that's not convenient to your usual narrative and your lies about everyone disagreeing being a pirate, but that's reality for you - it's complex and justice shouldn't be based on whatever preconceived assumption you find convenient.

"I'm not for harsh corporatized law where fools are dragged in and inquisited, threatened, and unduly punished beyond the actual value of the tunes"

Really? That's not what you normally spout.

"the principle of WRONG to COPY someone else's work must stand."

Nobody argues with that. It's the overbearing removal of peoples' right, disproportionate punishment, the ignoring of business solutions that don't require legal measures and attacks on every new technology that affect that amount of income people can get from work they did 30 years ago.Those are the problems.

You know, the things everybody's actually discussing while twats like you attack us as pirates and wave your strawmen and lies around. Join in the real conversation everybody's really having some time, you might enjoy it.

Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?

"You go off on the usual tear after "IF". -- IF you're a complete fool then you make up a story that fits your notions. The fact is that's you did there."

No, I addressed real risks associated with these attacks. Whether or not they're applicable to this particular case doesn't change the fact that innocent people have been attacked in the past, and this setup is gamed to make it impossible for an innocent to protect themselves. I'm sorry if that's not convenient to your usual narrative and your lies about everyone disagreeing being a pirate, but that's reality for you - it's complex and justice shouldn't be based on whatever preconceived assumption you find convenient.

"I'm not for harsh corporatized law where fools are dragged in and inquisited, threatened, and unduly punished beyond the actual value of the tunes"

Really? That's not what you normally spout.

"the principle of WRONG to COPY someone else's work must stand."

Nobody argues with that. It's the overbearing removal of peoples' right, disproportionate punishment, the ignoring of business solutions that don't require legal measures and attacks on every new technology that affect that amount of income people can get from work they did 30 years ago.Those are the problems.

You know, the things everybody's actually discussing while twats like you attack us as pirates and wave your strawmen and lies around. Join in the real conversation everybody's really having some time, you might enjoy it.

Besides the suppression of local culture by copyright time limits beyond the lifespan of the audience...
Corwin above better stated my opinion. I no longer believe in copyright as a viable concept anymore and will be suspicious of any replacement because of lack of trust in the current politicians in office. The competence they claim escapes me. Better to strike it down and worry about controversy later at least it will be legal. You can call it bullshit or whatever. I don't care at this stage. Do you feel damaged by it? -apathy- Think thats wrong? Too bad. I think your wrong too.

It occurs to me that the 3 or 6 strike 'plans' are just ways to squeeze money off of the unwary public in massive amounts. Adam Chandler said it; “follow the money”. Since the stink is enough, we don't need hounds to follow it...

I used to hear the phrase “inadmissible evidence” very often but even in the courtroom it seems a vanished concept never mentioned. The word “disallowed” seems to be currently in vogue like the judge actually has a choice or something like that.

At one time there were strict rules for evidence like not being to admit anything as evidence that was not on the search warrant. More strict are the first person witness rules and hearsay. The law written these days is so vague and uninterpretable that the (totally outrageous) phrase, of self justification, “intent of the law” is used in locally interpreted and implemented law. (yes the law in East Texas seems interpreted and implemented differently than elsewhere)

the fact that the IP and download evidence gathered so far by anyone is hearsay is a fact. The laxity of the ISPs and involved copyright associations classifies as ignorance. For reasons of completeness you'd have to download an entire file from the accused person just to prove it was not a corrupted file. (thanks #16 your nick is sooo long)

Ignorance of the law (is no excuse) goes both ways. Its one of the most abused phrases of false justification right along with (sic) “you should have thought of that before you...” (did that). Both phrases presuppose guilt without substantiation. Only a first person evidenced based (no hearsay) trial gives legitimacy and even then the above phrases is like a verbal water boarding regardless of guilt. The voluminous incomprehensibility of current law (thanks Monkey) reminds me of the founders intention that the constitution would be re-ratified every 50 years or so. (but the current crop of boneheads... -worry, worry-)

---
Two lawyers and a copyright maximalist enter a bar. The first lawyer asks the bartender for the plagiarized shaken not stirred martini. The second lawyer picks out the copyrighted nefarious Bluu-Rei brandy and the copyright maximalist requests the trademarked BatBoy beer. The bartender replies “that'll be two Strikes and a DCMA take-down notice”.

Re: Re: Re: Re: I'm curious to know

i *PRESUME* that the one 'gotcha' in this scenario, is the 'illegal intent' angle: it don't matter that someone is totally incapable of killing someone, IF they SAY they are going to kill someone, that is enough for the law...

I think it would only be enough for a court to find you guilty of attempted murder. For an actual murder charge to stick, you have to have killed someone. And there is no "Attempted Infringement" law on the books (but there likely will be now that I've given them the idea).

Re: Real Pirates

They did train dogs to sniff out burned media, one of the poor things even died and it was a great whodunit as they assumed the animal had been poisoned by the evil pirates trying to ship their mass quantities of bootleg movies all over.

Re:

This has already been accounted for the in US version.
I was reading the propaganda and to successfully challenge a Mitigation Measure you need to prove at least HALF of the notices were incorrect otherwise no dice.
So even if you can prove 1 of their claims is completely bogus and incorrect, if their are 2 others you can't convince the arbitrator are also incorrect all of them stand.

Arbitration... Don't we already have a broken biased arbitration system famous for toeing the corporate line? This sounds even worse than that because of the apparent attitude that they wont make any mistakes and listening to the (cigarette argument?) advertising and press trope everyone is already guilty just by getting a 'strike'. I am against any pirate like court intervening between a real first person witness evidenced based justice system. No one should be forced to signing away their fundamental rights.

Why do we have a court system overcrowded with non violent offenders anyway? It seems the last 40 years of law enforcement has lost touch with... everything? So much to pick on hardly worth a rant.

Re: Piracy STILL wrong despite corporate abuses!

"...BUT "intellectual property" is a valid notion, long recognized (writen into US Constitution despite Mike trying to erase it) in the word itself: "copy + right"."

Copyright is allowed by the Constitution, nothing more, supposedly under strict limitations which have been all but ignored by lawmakers. This is a point Mike has had to make countless times when clowns like you incorrectly claim it's a Constitutional right. That you would accuse Mike of trying to "erase" it is extraordinary, and shows how you'll desperately stoop to lying when you feel the need.

"No one but the creator has a right to distribute the works, not even when euphemized as "sharing"."

Tens of thousands of years of human culture disagree with you. Copyright has only very recently tried to artificially block this very natural human behaviour, under the premise of the greater good. Experience has shown the opposite effect.

"It derives from the creation, and the law is only recognition of right to keep one's own work, and solely to profit from it."

It's not "recognition" of anything, it's a purely artificial construct.

"You're on the wrong side of the moral question, so can only try petty legalisms."

Morals are completely subjective, and the massive number of people all around the world who knowingly or unknowingly engage in copyright infringement demonstrate the that the "moral question" does not have a simple answer and is nowhere near as clear cut as you think it is.

The only lesson I take is that the entertainment industry is desperate to find a proxy, they know that they need some sort of separation degree or they get screwed like the RIAA got their members in the US.

The entertainment industry understand full well that those laws will never accepted if enforced and those have very real negative impacts in the bottom line hence the need to find proxies so people don't immediately link them to the actions taken that harm people.

Those fools are screwed though, because copyright is the law being used to make those claims, the more it is used and the more visible it is to the public what it really does the less sympathy and trust it generates and at some point people will realize what it really costs to allow artificial monopolies to be granted to others.

Re: Re: Piracy STILL wrong despite corporate abuses!

No need to legitimize piracy is already a well accepted norm, is not yet on the books and may even take some time to be legalized, but legitimacy doesn't come from the law, true legitimacy comes from social practices.